RICHMOND, Va.— The 4th Circuit Court of Appeals peppered the health reform law’s challengers with intense rounds of questioning on Tuesday, suggesting that it could rule against both Virginia and Liberty University — two of the four cases racing toward the Supreme Court this spring and summer.

Oral arguments in both cases were held back-to-back Tuesday in front of a randomly selected panel of three judges — who all happened to be appointed by Democratic presidents.

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The panel sharply questioned whether Virginia has a right to sue the federal government, suggesting that if Virginia can sue, so can a state that doesn’t like the Iraq war. The Virginia case was brought by the state’s headline-grabbing attorney general, Ken Cuccinelli.

The judges also questioned Liberty University’s claim that not entering the health insurance market is inactivity that cannot be regulated under the Commerce Clause.

In two hours of arguments — far more time than originally outlined — the judges never brought up what to do if they uphold the ruling that the individual mandate is unconstitutional. While not a sure sign that the panel could rule against the law, it’s a hint that it wasn’t on the judges' minds during the discussions.

The panel appeared sympathetic to the government’s argument that it is using the requirement to buy insurance coverage — the key provision Liberty University and Virginia are contesting — to address what Acting Solicitor General Neal Katyal called a “massive social problem.”

One of the judges, Andre M. Davis, cited a hypothetical situation in which a group of people from Virginia got into a car accident in Maryland and a hospital incurred hundreds of thousands of dollars in medical costs.

“Is it your submission that Congress has no power to address in the aggregate what happens every day?” the judge asked lawyers for Liberty University.

But it’s the vegetable question — broccoli or asparagus, depending on the judge — that continues to be one of the most significant obstacles for the law’s supporters: If it’s OK for Congress to require Americans to buy health insurance, can it require people to buy vegetables or a membership at a health gym because they’re good for you too?

Katyal said the mandate is narrow in that it only regulates how people purchase health care. His argument is based on the premise that all Americans will consume health care at some point in their lives — whether they want to or not.

Walter E. Dellinger, who served as an acting solicitor general under then-President Bill Clinton, expects that question to continue to come up in the cases.

“And the answer is absolutely clear,” he told POLITICO outside the Richmond courtroom. “There’s not a single other product in the world that Congress could require you to purchase just because this statute is upheld. It’s because there’s no other product that people are required by law to provide you for free the way they are for emergency medical treatment.”

The panel was made up of Davis, Diana Gribbon Motz and James A. Wynn Jr. Gribbon Motz was nominated to the bench by Clinton, and Davis and Wynn were nominated by President Barack Obama.

Readers' Comments (121)

The comparison to eating vegetables or joining a gym because it's good for you is just silly. Some people can't eat specific vegetables because of allergies or inability to digest. Some people really can't exert themselves at a gym. Nobody is allergic to needing health care. Nobody is exempt from the prospect of the body getting injured or sick. The need for health care is universal. The ability to join a gym or eat veggies truly is not.

Poor AMorfa has a problem with a simple observation fully supported by the subject article. But this is more than made up for by an eloquent voice. Hope s/he shares equally provocative insight in the future. Perhaps the poor soul missed the following passages:

Oral arguments in both cases were held back-to-back Tuesday in front of a randomly selected panel of three judges — who all happened to be appointed by Democratic presidents.

In two hours of arguments — far more time than originally outlined — the judges never brought up what to do if they uphold the ruling that the individual mandate is unconstitutional. While not a sure sign that the panel could rule against the law, it’s a hint that it wasn’t on the judges' minds during the discussions.

The comparison to eating vegetables or joining a gym because it's good for you is just silly. Some people can't eat specific vegetables because of allergies or inability to digest. Some people really can't exert themselves at a gym. Nobody is allergic to needing health care. Nobody is exempt from the prospect of the body getting injured or sick. The need for health care is universal. The ability to join a gym or eat veggies truly is not.

This condition is unconstitutional and this will be stated by the SCOTUS once it's in their hands.

Democrats will go to any extreme to try and thwart the will of the american people. Its really sad when the courts have stopped judging on the merits and legality of cases and now simply are tokens of the political process. Its the beginning of the end for your freedoms and rule by dictator ship.

It's sad some who post don't understand what Liberty, Freedon, Justice, or Pursuit of Happiness is all about.

Either they are the privileged elitest bleading hearts or the recipients of wellfare. It's clear they are not the average hard working taxpaying American that is being beated down by a socialist agenda.

Why should we be surprised? All of these "Judges" were appointed by Democratic Presidents - who said justice in America is fair and/or deserves respect of its citizens? In fact, a close and sober examination of the "American Justice System" would be a real shocker indeed!!

I'm an American living in Sweden and would much rather be tried in a Sweden court then anywhere in America. Here law - not politics - generally prevails. Of course the Swede system has its shortcomings, but no where near the American system of "justice" failures - be in civil or criminal law.

Love the conservative SCOTUS. The health care sham that Obozo & electric LIB company tried to force on the hard-working American citizens will be overturned. Love Scalia, Roberts, Thomas, Alito, and Kennedy (sometimes).

I can't wait for the best & brightest the government has to offer present they're case to the SC by saying "well judges it's like joining a gym......" You can't compel someone to not do something. The 16th amendment doesn't allow it. This is all theatre; Obamacare gets over-turned out at the SC.

It's sad some who post don't understand what Liberty, Freedon, Justice, or Pursuit of Happiness is all about.

Either they are the privileged elitest bleading hearts or the recipients of wellfare. It's clear they are not the average hard working taxpaying American that is being beated down by a socialist agenda.

Democrats will go to any extreme to try and thwart the will of the american people. Its really sad when the courts have stopped judging on the merits and legality of cases and now simply are tokens of the political process. Its the beginning of the end for your freedoms and rule by dictator ship.

It's not the WILL of the American people we're talking about here - IT'S THE IGNORANCE of some of the American people. Actually, I'm not even sure ignorance is the right word - perhaps ignorance as it relates to political ideology is closer.because that is what this is all about in the first place. Republicans are always going on about "individual responsibility" and that is what this is all about. Sure, we could all get auto insurance without the law providing (mandating) that we do IF we were all willing to live up to our own "individual responsibility" but fact is, we aren't - some will take a chance and end up leaving others to pay for their medical care. Thus, adding to the cost of insurance premiums for those of us with coverage and leaving the federal government to pick up even more of the tab.

I don't see how mandating healthcare insurance is any more big government than some of the things REpublicans have been doing across the country when it comes to womens healthcare - and yet, the still rail against what they call "big government" - how much bigger can government get than to stick their noses in the private and personal use of a womans uterus???